Flashcards in WIlls & Estates Deck (69)
only survives=takes all; spouse + kids belonging to both=spouse gets all; spouse + kid of dead spouse=1/2 each; spouse+kid of both+kid of live spouse= spouse 1/2, kid of both gets 1/2; dead spouse has prior kid+live spouse has prior kid=spouse gets 1/2; divorce: completed divorce or annulment negate spousal share in intestacy-must be married at time of spouse's death
spousal elective share
30% of assets in elective share
elective share assets exclusions
irrevocable transfers made before marriage of Oct. 1999, homestead property
adopted kids in intestacy
treated as blood kids of adoptive parent; loses right to inherit from natural parent unless: 1-step-parents adopts kid; 2-widowed parent remarries & new spouse adopts kid; and 3-both parents die and a family member adopts.
virtual adoption in intestacy
kid must prove paternity to adopt from guy: 1-wedding ceremony, even if later voided; 2-paternity established in court; 3-father acknowledges paternity in writing
Uniform Simultaneous Death Act
if decedent and BEN die at the same time, Fl acts as though BEN died 1st--rule also applies to insurance and property held in joint tenancy or tenancy by the entirety; a person must survive the decedent by a second in time; proven by a preponderance of the evidence
acknowledged by testator or heir in writing; value is added to decedent's estate, then division is made and share is subtracted from the advance-receiver's share
gift of particular property such as a car; satisfied only by BEN's receipt of the particular item
fixed amount of money or property from a particular fund or sale of a particular item. If item or fund are no longer in estate, devise can be satisfied from general estate
satisfied from general assets
all estate assets remaining after all other devises have been satisfied and all claims and costs have been paid
incorporation by reference
can incorporate another document by referring to it in a will, limited to disposition of tangible personal property by separate writing ... cannot dispose by separate writing, a tangible personal property specifically devised in the will.
revocation of a will
requires present intent to revoke; does not require witnesses to revoke or an express revocation in a subsequent will; if terms in a subsequent will are in conflict with a prior will, the inconsistent terms of the prior will are revoked; if a person marries a testator after the execution of a will, the will is NOT automatically revoked and the new spouse automatically is entitled to a pretermitted share of the estate.
lapse- general rule
general rule is that if a devise predeceases the testator, or is treated as such, the gift fails
applies to devisees that are testator's grandparents, or a descendent of the grandparents; devise is distributed to the devisee's descendent's in per stirpes; unless the will shows contrary intent such as naming a substitute taker or including words of survivorship (to bacon, if bacon survives me).
class gift rule
if devisee is grandparent or descendent of grandparent, the anti-lapse rule applies; the devise is given to devisee's descendants per stirpes
cannot be saved by anti=lapse statute; if specific, demonstrative, or general devise, it becomes part of the residuary estate
residuary devisee predeceases or treated as having predeceased; if more than one residuary devisee, it goes to survivor; if residuary devisee is testator's grandparent or descendent of grandparent, the anti-lapse rule applies; if residuary devise lapses, it will be distributed through intestacy
means reduction; if not enough estate to pay all the claims the default order is: intestate, residuary, general, specific, and demonstrative
ademption by extinction
applies only to specific devises; if devise is no longer part of the estate, then gift fails
FL non-ademption statute
specific devisee has a right to" any balance of purchase price and any security interest unpaid by a purchaser; condemnation award; proceeds paid from fire or casualty insurance; property owned by testator as a result of foreclosure, or obtained instead of foreclosure, of the security for the specifically devised obligation. If not addressed in the statute, can argue that testator had no intent in disinheriting the devisee and the specific devise is traceable to existing assets of the decedent.
what is covered by homestead?
real property to an extent; personal property to an extent
what does homestead do?
protects real property from forced sale by creditors; exemptions: mortgage, taxes, lien for construction
what are the homestead exemptions?
taxes, mortgage, liens for construction
how much land can be homesteaded?
in a municipality: 1/2 acre, home only; outside a municipality: 160 continguous acres, house and other buildings on property
can you transfer a homestead?
yes, to spouse, children, or other heirs
restriction on alienation of homestead
if owner has a minor child-cannot devise at all; if no minor child, but has a spouse-can only devise to the spouse; if owner attempts to devise, the surviving spouse gets a life estate, and the descendent gets a vested remainder
can spouse waiver right to homestead?
yes-by pre- or post-nuptial agreement
how much personal property can be homesteaded?
FLC exempts up to $1,000 in personal property